BILL NUMBER: SB 660 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 19, 2015
AMENDED IN ASSEMBLY AUGUST 18, 2015
AMENDED IN ASSEMBLY JULY 7, 2015
AMENDED IN SENATE MAY 6, 2015
AMENDED IN SENATE APRIL 15, 2015
INTRODUCED BY Senators Leno and Hueso
FEBRUARY 27, 2015
An act to amend Sections 305, 307, 308, 309.6,
1701.1, 1701.2, 1701.3, and 1701.4 1701.4,
and 1701.5 of, and to add Sections 305.5, 307.5,
1701.6, and 1701.7 1701.7, and 1701.8
to, the Public Utilities Code, relating to the Public Utilities
Commission.
LEGISLATIVE COUNSEL'S DIGEST
SB 660, as amended, Leno. Public Utilities Commission.
(1) The California Constitution establishes the Public Utilities
Commission, with jurisdiction over all public utilities. The
California Constitution grants the commission certain general powers
over all public utilities, subject to control by the Legislature, and
authorizes the Legislature, unlimited by the other provisions of the
California Constitution, to confer additional authority and
jurisdiction upon the commission that is cognate and germane to the
regulation of public utilities. Existing law requires the Governor to
designate the president of the commission from among its members and
requires the president to direct the executive director, the
attorney, and other staff of the commission, except for the Office of
Ratepayer Advocates. Existing law authorizes the executive
director and the attorney to undertake certain actions if directed or
authorized by the president, except as otherwise directed or
authorized by vote of the commission.
This bill would repeal the requirement that the president
direct the executive director, the attorney, and other commission
staff. The bill would delete the authority of the president to direct
or authorize the executive director and attorney to undertake
certain actions, and would instead require that they be directed or
authorized to undertake those actions by the commission. The bill
would authorize the commission to delegate specific
management and internal oversight functions to committees composed of
2 commissioners. The bill would require the commission to
vote in an open meeting on the assignment or reassignment of
proceeding to one or more commissioners. The bill
would require the commission to appoint a chief administrative law
judge who would be responsible for the commission's executive and
administrative management and oversight of the administrative law
judge division and would require the chief administrative law judge
to organize, coordinate, supervise, and direct the operations of the
administrative law judge division as directed by the commission,
consistent with commission policies and priorities.
Existing law requires the executive director to keep a full and
true record of all proceedings of the commission.
This bill would delete that requirement and would instead require
the chief administrative law judge to keep a full and true record of
all proceedings of the commission.
(2) Existing law requires the commission, upon initiating a
hearing, to assign one or more commissioners to oversee the case and
an administrative law judge, where appropriate. Existing law requires
the assigned commissioner to prepare and issue, by order or ruling,
a scoping memo that describes the issues to be considered and the
applicable timetable for resolution. Existing law requires the
commission to adopt procedures on the disqualification of
administrative law judges due to bias or prejudice similar to those
of other state agencies and superior courts.
This bill would require the commission to additionally adopt
procedures on disqualification of commissioners due to bias or
prejudice similar to those of other state agencies and superior
courts. For ratesetting or adjudicatory proceedings, the bill would
require a commissioner or an administrative law judge to be
disqualified if there is an appearance of for
bias or prejudice based on specified criteria. The bill would
require that the commission procedures prohibit a commissioner or
administrative law judge from ruling on a motion made by a party to a
proceeding to disqualify the commissioner or administrative law
judge due to bias or prejudice.
(3) The Public Utilities Act requires the commission to determine
whether a proceeding requires a hearing and, if so, to determine
whether the matter requires a quasi-legislative, an adjudication, or
a ratesetting hearing. For these purposes, quasi-legislative cases
are cases that establish policy rulemakings and investigations, which
may establish rules affecting an entire industry, adjudication cases
are enforcement cases and complaints, except those challenging the
reasonableness of any rates or charges, and ratesetting cases are
cases in which rates are established for a specific company,
including general rate cases, performance-based ratemaking, and other
ratesetting mechanisms. The act regulates communications in hearings
before the commission and defines "ex parte communication" to mean
any oral or written communication between a decisionmaker and a
person with an interest in a matter before the commission concerning
substantive, but not procedural, issues that does not occur in a
public hearing, workshop, or other public proceeding, or on the
official record of the proceeding on the matter. Existing law defines
"person with an interest" to mean, among other things, a person with
a financial interest in a matter before the commission, or an agent
or employee of the person with a financial interest, or a person
receiving consideration for representing the person with a financial
interest. Existing law requires the commission, by regulation, to
adopt and publish a definition of the terms "decisionmaker" and
"persons" for those purposes, along with any requirements for written
reporting of ex parte communications and appropriate sanctions for
noncompliance with any rule proscribing ex parte communications. The
act provides that ex parte communications are prohibited in
adjudication cases and are prohibited in ratesetting cases, with
certain exceptions. The act requires that ex parte communications be
permitted in quasi-legislative cases, without any restrictions. The
commission's Rules of Practice and Procedure define a "decisionmaker"
as any commissioner, the Chief Administrative Law Judge, any
Assistant Chief Administrative Law Judge, the assigned administrative
law judge, or the Law and Motion Administrative Law Judge. The Rules
of Practice and Procedure provide that communications with a
commissioner's personal advisors are subject to all of the
restrictions on, and reporting requirements applicable to, ex parte
communications, except that oral communications with an advisor in
ratesetting proceedings are permitted without the restrictions.
This bill would require that the commission determine whether
every proceeding, not just those requiring a hearing, is a
quasi-legislative, adjudication, or ratesetting proceeding. The bill
would delete the provision that an ex parte communication
concerns a substantive, but not a procedural matter, and instead
would provide that an ex parte communication concerns any matter that
the commission has not specified in its Rules of Practice and
Procedure as being a procedural matter and that does not occur in
a public hearing, workshop, or other public proceeding, or on the
official record of the proceeding on the matter. The bill would
prohibit the commission from considering as a procedural matter
communications between an interested person and a decisionmaker
regarding which commissioner or administrative law judge may be
assigned to a matter before the commission. The bill would define a
person involved in issuing credit ratings or advising entities or
persons who may invest in the shares or operations of any party to a
proceeding as an interested person. The bill would require that the
commission, by rule, adopt and publish a definition of
decisionmakers, that would be required to include certain individuals
in the commission. The bill would require decisionmakers to
periodically report summary logs of ex parte communications with
interested persons in compliance with rules established by the
commission, and included in the commission's Rules of Practice and
Procedure, and the commission to establish and
maintain a communications log summarizing all oral or
written ex parte communications that occur between an interested
person and the commission, the attorney for the commission, the
executive director of the commission, the personal staff of a
commissioner, if the staff is acting in a policy or legal advisory
capacity, the chief administrative law judge, or the administrative
law judge assigned to the proceeding. The bill would require
the commission to post those summary logs the
communications log on its Internet Web site.
This bill would require that a decisionmaker, in an adjudication
or ratesetting case, who makes or receives a prohibited ex parte
communication, or who receives an ex parte communication that was not
timely reported, to disclose certain information regarding the
communication in the record of the proceeding before the commission
takes a vote on the matter. If a prohibited ex parte
communication is not disclosed until after the commission has issued
a decision on the matter to which the communication pertained, a
party not participating in the communication would be authorized to
file a petition to rescind or modify the decision. The bill
would require the commission to render decisions based upon the
record in a case and would provide that an ex parte communication not
be part of the record of the proceeding.
This bill would provide that ex parte communications are permitted
in quasi-legislative proceedings, but would require that they be
reported within 3 working days of the communication by
filing a "Notice of Ex Parte Communication" with the commission in
accordance with procedures established by the commission for the
service of that notice and containing specified information.
in the communications log maintained by the
commission.
This bill would require the commission to additionally prohibit
communications concerning procedural issues in adjudication cases
between parties or persons with an interest and decisionmakers,
except for the assigned administrative law judge.
Under existing law, the exceptions to the prohibition upon ex
parte communications in ratesetting proceedings authorize a
commissioner to permit oral ex parte communications if all interested
parties are invited and given not less than 3 days' notice. If an ex
parte communication meeting is granted to any party, it is required
that all other parties also be granted individual ex parte meetings
of a substantially equal period of time and that all parties be sent
a notice of that authorization at the time the request is granted, at
least 3 days prior to the meeting. The exceptions authorize a
commissioner to permit written ex parte communications by any party
provided that copies of the communication are transmitted to all
parties.
This bill would delete the requirement that if an ex parte
communication meeting is granted to any party in a ratesetting
proceeding, that all other parties also be granted individual ex
parte meetings of a substantially equal period of time and that all
parties be sent a notice of that authorization at the time the
request is granted, at least 3 days prior to the meeting. The bill
would prohibit oral communications concerning procedural matters in
ratesetting cases between parties or persons with an interest and
decisionmakers other than the assigned administrative law judge,
except that a commissioner would be authorized to permit an oral
communication relative to procedural matters if all interested
parties are invited and given not less than 3 days' notice. The bill
would prohibit written ex parte communications concerning procedural
matters in ratesetting cases between parties or persons with an
interest and decisionmakers other than the assigned administrative
law judge, except that a commissioner would be authorized to permit a
written communication relative to procedural issues by any party
provided that copies of the communication are transmitted to all
parties on the same day.
This bill would expressly make the prohibitions upon ex parte
communications that relate to adjudicatory or ratesetting proceedings
applicable to ex parte communications that occur at conferences, as
defined. The bill would also make the requirements that pertain to ex
parte communications that relate to quasi-legislative proceedings
applicable to ex parte communications that occur at conferences.
This bill would authorize the commission to impose civil
sanctions, including civil penalties, on any entity or person, other
than a decisionmaker or employee of the commission, that violates ex
parte communication requirements. The bill would authorize the
Attorney General to bring an enforcement action in the Superior Court
of the City and County of San Francisco against a decisionmaker or
employee of the commission who violates the ex parte communication
requirements.
Under existing law, a violation of the Public Utilities Act or any
order, decision, rule, direction, demand, or requirement of the
commission is a crime.
Because the provisions of this bill would be a part of the act and
because a violation of an order or decision of the commission
implementing its requirements would be a crime, the bill would impose
a state-mandated local program by expanding the application of a
crime.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 305 of the Public Utilities
Code is amended to read:
305. The Governor shall designate a president of the commission
from among the members of the commission. The president shall preside
at all meetings and sessions of the commission.
SEC. 2. SECTION 1. Section 305.5 is
added to the Public Utilities Code, to read:
305.5. (a) The commission shall direct the executive
director, the attorney, and other staff of the commission, except for
the staff of the Office of Ratepayer Advocates described in Section
309.5, in performance of their duties. may delegate
specific management and internal oversight functions to committees
composed of two commissioners. Committees shall meet regularly with
staff and shall report to the commission for additional guidance or
approval of decisions pertaining to the operations o f the
commission.
(b) The commission may delegate specific management and internal
oversight functions to committees composed of two commissioners.
Committees shall meet regularly with staff and shall report to the
commission for additional guidance or approval of decisions
pertaining to the operations of the commission.
(c)
(b) The commission shall vote in an open meeting on the
assignment or reassignment of any proceeding to one or more
commissioners.
SEC. 3. Section 307 of the Public Utilities
Code is amended to read:
307. (a) The commission may appoint as attorney to the commission
an attorney at law of this state, who shall hold office during the
pleasure of the commission.
(b) The attorney shall represent and appear for the people of the
State of California and the commission in all actions and proceedings
involving any question under this part or under any order or act of
the commission. If directed to do so by the commission, the attorney
shall intervene, if possible, in any action or proceeding in which
any such question is involved.
(c) The attorney shall commence, prosecute, and expedite the final
determination of all actions and proceedings directed or authorized
by the commission, advise the commission and each commissioner, when
so requested, in regard to all matters in connection with the powers
and duties of the commission and the members thereof, and generally
perform all duties and services as attorney to the commission that
the commission may require of him or her.
SEC. 2. Section 307.5 is added to the
Public Utilities Code , to read:
307.5. (a) The commission shall appoint a chief administrative
law judge, who shall hold office at the pleasure of the commission.
(b) The chief administrative law judge shall be responsible for
the commission's executive and administrative management and
oversight of the administrative law judge division and shall
organize, coordinate, supervise, and direct the operations of the
division as directed by the commission, consistent with commission
policies and priorities.
(c) The chief administrative law judge shall keep a full and true
record of all proceedings of the commission.
SEC. 4. SEC. 3. Section 308 of the
Public Utilities Code is amended to read:
308. (a) The commission shall appoint an executive director, who
shall hold office during its pleasure. The executive director shall
be responsible for the commission's executive and administrative
duties and shall organize, coordinate, supervise, and direct the
operations and affairs of the commission and expedite all matters
within the commission's jurisdiction.
(b) The executive director shall keep a full and true
record of all proceedings of the commission, issue all
necessary process, writs, warrants, and notices, and perform any
other duties as the commission prescribes. The commission
president or, by vote, the commission may
authorize the executive director to dismiss complaints or
applications when all parties are in agreement thereto, in accordance
with rules that the commission may prescribe.
(c) The commission may appoint assistant executive directors who
may serve warrants and other process in any county or city and county
of this state.
SEC. 5. SEC. 4. Section 309.6 of the
Public Utilities Code is amended to read:
309.6. (a) The commission shall adopt procedures on the
disqualification of commissioners and administrative law judges due
to bias or prejudice similar to those of other state agencies and
superior courts.
(b) (1) For ratesetting and adjudicatory proceedings, a
commissioner or administrative law judge shall be disqualified
if there is an appearance of for bias
or prejudice based on any of the following:
(A) Actions taken during the proceeding.
(B) Private communications before the commencement of the
proceeding to influence the request for relief sought by any party to
the proceeding.
(C) Actions demonstrating any commitment to provide relief to a
party.
(2) Past work experience by the commissioner or administrative law
judge shall not be a sufficient basis for demonstrating an
appearance of bias or prejudice pursuant to paragraph (1).
(c) The commission procedures shall prohibit a commissioner or
administrative law judge from ruling on a motion made by a party to a
proceeding to disqualify the commissioner or administrative law
judge due to bias or prejudice.
(d) The commission shall develop the procedures with the
opportunity for public review and comment.
SEC. 6. SEC. 5. Section 1701.1 of
the Public Utilities Code is amended to read:
1701.1. (a) The commission, consistent with due process, public
policy, and statutory requirements, shall determine whether a
proceeding requires a hearing. The commission shall determine whether
the matter requires each proceeding is
a quasi-legislative, an adjudication, or a ratesetting
hearing. proceeding. The commission's decision
as to the nature of the proceeding shall be subject to a request for
rehearing within 10 days of the date of that decision. If that
decision is not appealed to the commission within that time period it
shall not be subsequently subject to judicial review. Only those
parties who have requested a rehearing within that time period shall
subsequently have standing for judicial review and that review shall
only be available at the conclusion of the proceeding. The commission
shall render its decision regarding the rehearing within 30 days.
The commission shall establish rules regarding ex parte communication
on case categorization issues.
(b) The commission upon initiating a an
adjudication hearing or ratesetting hearing shall assign one or
more commissioners to oversee the case and an administrative law
judge where appropriate. The assigned commissioner shall schedule a
prehearing conference. The assigned commissioner shall prepare and
issue by order or ruling a scoping memo that describes the issues to
be considered and the applicable timetable for resolution. The
administrative law judge shall either preside and conduct, or assist
the assigned commissioner or commissioners in presiding and
conducting, any evidentiary or adjudication hearing that may be
required.
(c) The commission upon initiating a quasi-legislative hearing
shall assign one or more commissioners to oversee the case and an
administrative law judge who may be assisted by a technical advisory
staff member in conducting the proceeding. The assigned commissioner
shall prepare and issue by order or ruling a scoping memo that
describes the issues to be considered and the applicable timetable
for resolution.
(c)
(d) (1) Quasi-legislative cases, for purposes of this
article, are cases that establish policy, including, but not limited
to, rulemakings and investigations which may establish rules
affecting an entire industry.
(2) Adjudication cases, for purposes of this article, are
enforcement cases and complaints except those challenging the
reasonableness of any rates or charges as specified in Section 1702.
(3) Ratesetting cases, for purposes of this article, are cases in
which rates are established for a specific company, including, but
not limited to, general rate cases, performance-based ratemaking, and
other ratesetting mechanisms.
(4) "En banc hearing," for purposes of this article, is a public
hearing held on the record before a quorum of commissioners at which
parties to a proceeding shall have the right to participate and let
their views be heard regarding any factual, legal, or policy issue in
the proceeding.
(d)
(e) (1) (A) "Ex parte communication," for purposes of
this article, means any oral or written communication between a
decisionmaker and an interested person concerning any matter
before the commission that the commission has not specified in
its Rules of Practice and Procedure as being a procedural matter and
that does not occur in a public hearing, workshop, or other public
proceeding, or on the official record of the proceeding on the
matter. The commission shall specify in its Rules of Practice and
Procedure, enacted by rulemaking, the types of
communications issues considered procedural
matters under this article. Any communication between an interested
person and a decisionmaker regarding which commissioner or
administrative law judge may be assigned to a matter before the
commission shall not be deemed to be a procedural matter and shall be
an ex parte communication subject to this article.
(B) "Interested person," for purposes of this article, means any
of the following:
(i) Any applicant, an agent or an employee of the applicant, or a
person receiving consideration for representing the applicant, or a
party to the proceeding on any matter before the commission.
(ii) Any person with a financial interest, as described in Article
1 (commencing with Section 87100) of Chapter 7 of Title 9 of the
Government Code, in a matter before the commission, or an agent or
employee of the person with a financial interest, or a person
receiving consideration for representing the person with a financial
interest. A person involved in issuing credit ratings or advising
entities or persons who may invest in the shares or operations of any
party to a proceeding is a person with a financial interest.
(iii) A representative acting on behalf of any civic,
environmental, neighborhood, business, labor, trade, or similar
organization who intends to influence the decision of a commission
member on a matter before the commission.
(iv) Other categories of individuals deemed by the commission, by
rule, to be an interested person.
(2) The commission shall by rule adopt and publish a definition of
decisionmakers and interested persons for purposes of this section,
along with any requirements for written reporting of ex parte
communications and appropriate sanctions for noncompliance with any
rule proscribing ex parte communications. The definition of
decisionmakers shall include, but is not limited to, each
commissioner; the attorney for the commission; the executive director
of the commission; the personal staff of a commissioner if the staff
is acting in a policy or legal advisory capacity; the Chief
Administrative Law Judge chief administrative law
judge of the commission; and the administrative law
judge assigned to the proceeding; and the director of the
Energy Division, the director of the Communications Division, the
director of the Water and Audits Division, and the director of the
Safety and Enforcement Division, where those directors are acting in
an advisory capacity in the proceeding.
(3) For quasi-legislative cases, the rules shall provide that ex
parte communications that are required to be reported shall be
reported by the interested person, whether the communication was
initiated by the interested person or the decisionmaker.
(4) For quasi-legislative cases, ex parte communications shall be
reported by an interested person within three working days of the
communication by filing a "Notice of Ex Parte Communication" with the
commission in accordance with the procedures established by the
commission for the service of that notice. The notice shall include
the following information:
(A) The date, time, and location of the communication, whether it
was oral, written, or a combination, and the communications medium
utilized.
(B) The person initiating the communication, including a
decisionmaker, when applicable, and the identity of the recipient and
any persons present during the communication.
(C) A complete and comprehensive description of the interested
person's and the decisionmaker's communication and its content, to
which shall be attached a copy of any written material or text used
during the communication.
(5)
(3) For adjudication and ratesetting cases, the rules
shall provide that if a prohibited ex parte
communications shall be prohibited, as required by this article. The
rules shall provide that if an ex parte communication
occurs, occurs that is prohibited by this article,
whether initiated by a decisionmaker or an interested person,
all of the following shall be required:
(A) The interested person participating in the
communication shall report the communication within one
working day of the communication by filing a Notice of
Prohibited Ex Parte Communication notice with
the commission in accordance with the procedures established
by the commission for the service of that notice. The notice shall
include the information required by paragraph (4).
that includes all the following:
(i) The date, time, and location of the communication, whether the
communication was oral, or written, or a combination of both, and
the communication medium utilized.
(ii) The identity of the decisionmaker, the identity of the person
initiating the communication, and any other persons present.
(iii) A complete and comprehensive description of the interested
person's and the decisionmaker's communication and its content.
(iv) A copy of any written material or text used during the
communication.
(B) A Any decisionmaker who
participated in the prohibited communication shall
comply with both of the following:
(i) If the interested person who participated in the communication
has not timely submitted the Notice of Prohibited Ex Parte
Communication notice required by subparagraph
(A), the decisionmaker shall promptly prepare and file a
"Decisionmaker's Notice of Prohibited Ex Parte Communication" with
the commission in accordance with the procedures established by the
commission for the service of that notice. The notice shall include
the information required by paragraph (4). notice that
includes the information required by subparagraph (A).
(ii) If the interested person has timely submitted the
Notice of Prohibited Ex Parte Communication notice
required by subparagraph (A), the decisionmaker shall
review the interested person's submitted notice. If the decisionmaker
believes that the interested person's submitted notice is not
accurate or does not meet the requirements of paragraph (4), the
decisionmaker shall promptly file a notice that corrects or
supplements the interested person's submitted notice in accordance
with the procedures established by the commission for the service of
that notice. If the decisionmaker believes that the interested person'
s submitted notice is accurate and meets the requirements of
paragraph (4), the decisionmaker shall promptly file a notice that
indicates his or her concurrence with the interested person's
submitted notice in accordance with the procedures established by the
commission. either promptly file a notice affirming
the factual representations made by the interested person in the
notice or promptly file a notice correcting or supplementing the
factual representations made by the interested person.
(6)
(4) The commission shall not take any vote on a matter
to which a prohibited ex parte communication is known to
have occurred until the notices required by this subdivision have
been made and where a notice has been filed pursuant
to subparagraph (A) or (B) of paragraph (3) until all parties
to the proceeding have been provided a reasonable opportunity to
respond to the prohibited ex parte communication.
(7)
(5) If the a prohibited
ex parte communication is not disclosed as required by this
subdivision until after the commission has issued a decision on the
matter to which the prohibited communication pertained, the
commission shall provide a reasonable time for a party to
a party not participating in the communication may file a
petition to rescind or modify the decision. The party may seek a
finding that the ex parte communication was prohibited and
significantly influenced the decision's process or outcome as part of
any petition to rescind or modify the decision. The commission
shall process the petition in accordance with the commission's
procedures for petitions for modification and shall issue a decision
on the petition no later than 180 days after the filing of the
petition.
(8) A decisionmaker shall periodically report summary logs of ex
parte communications with interested persons in compliance with rules
established by the commission to be included in its Rules of
Practice and Procedure. The commission shall post the summary logs on
its Internet Web site. A summary log, at a minimum, shall include
information required in paragraph (3) and in subparagraphs (A) and
(B) of paragraph (4) and the relevant proceedings discussed. If a
decisionmaker believes that a Notice of Ex Parte Communication
submitted by an interested person in a quasi-legislative case is
inaccurate or fails to meet the requirements of paragraphs (3) and
(4), the decisionmaker may include corrected or supplemental
information in the summary log and shall also provide notice of any
corrected or supplemental information in the proceeding to which it
pertains in accordance with the procedures established by the
commission for the service of that information. The commission shall
enable the posting of summary logs on its Internet Web site not later
than July 1, 2016.
(9)
(6) (A) Ex parte communications that occur at
conferences, including open session communications, shall be governed
by the provisions of this article and any rules adopted by the
commission pursuant to conferences that are related to
an adjudication or ratesetting proceeding shall be prohibited
consistent with the ex parte communications requirements of
this article.
(B) Notwithstanding subparagraph (A), the commission may adopt
rules for inclusion in the commission's Rules of Practice and
Procedure specific to open session communications if the rules do
both of the following:
(i) Open session communications relating to a pending adjudication
case or a pending ratesetting case shall be prohibited.
(ii) Open session communications relating to a pending
quasi-legislative case may be permitted if the commission's rules
require that permitted open session communications are promptly
disclosed in the proceeding to which the communication relates and
require that parties to the proceeding are allowed a reasonable
opportunity to respond to the communication before the commission may
vote on any matter to which the communication pertained.
(C) For purposes of this section, "open session communication"
means an ex parte communication made in a speech, comment, or writing
delivered to all attendees of a noticed session of a conference. All
other ex parte communications at a conference, including, but not
limited to, communications in a private setting or during meals,
entertainment events, tours, and informal discussions among
conference attendees, are not included in the definition of open
session communication.
(B) Ex parte communications that occur at conferences and that are
related to a quasi-legislative proceeding shall be governed by the
ex parte communication disclosure requirements developed by the
commission.
(C) For purposes of this section, "ex parte communications that
occur at conferences" includes, but is not limited to, communications
in a private setting or during meals, entertainment events, and
tours, and informal discussions among conference attendees.
(10)
(7) The commission shall render its decisions based on
the evidence in the record. Ex parte communications shall not be a
part of the record of the proceedings.
(f) The commission may meet in a closed session to discuss
administrative matters not related to a proceeding before the
commission, so long as no collective consensus is reached or vote
taken on any matter requiring a vote of the commissioners.
SEC. 7. SEC. 6. Section 1701.2 of
the Public Utilities Code is amended to read:
1701.2. (a) If
If the commission pursuant to Section 1701.1 has
determined that an adjudication case requires a hearing, the
procedures prescribed by this section shall be applicable.
The
(a) The assigned commissioner or
the assigned administrative law judge shall hear the case in the
manner described in the scoping memo. The scoping memo shall
designate whether the assigned commissioner or the assigned
administrative law judge shall preside in the case. The
(b) The commission shall provide
by rule for peremptory challenges and challenges for cause of the
administrative law judge. Challenges for cause shall include, but not
be limited to, financial interests and prejudice. The rule shall
provide that all parties are entitled to one peremptory challenge of
the assignment of the administrative law judge in all cases. All
parties are entitled to unlimited peremptory challenges in any case
in which the administrative law judge has within the previous 12
months served in any capacity in an advocacy position at the
commission, been employed by a regulated public utility, or has
represented a party or has been an interested person in the case.
The
(c) The assigned commissioner or
the administrative law judge shall prepare and file a decision
setting forth recommendations, findings, and conclusions. The
decision shall be filed with the commission and served upon all
parties to the action or proceeding without undue delay, not later
than 60 days after the matter has been submitted for decision. The
decision of the assigned commissioner or the administrative law judge
shall become the decision of the commission if no further action is
taken within 30 days. Any party may appeal the decision to the
commission, provided that the appeal is made within 30 days of the
issuance of the decision. The commission may itself initiate a review
of the proposed decision on any grounds. The commission
(d) The commission shall hold an en banc hearing before a quorum
of commissioners, in all adjudication cases in which an appeal has
been filed, at which all parties have an opportunity to be heard,
unless all parties waive this requirement and a majority of
commissioners concur with that waiver. The commission shall adopt
rules for implementation of this requirement, which shall provide for
the broadest participation by parties to the proceeding that the
commission can reasonably accommodate, consistent with the
commissioners' other duties and responsibilities.
(e) The commission's decision
shall be supported by findings of fa ct on all issues
material to the decision, and the findings of fact shall be
based on the record developed by the assigned commissioner or the
administrative law judge. A decision different from that of the
assigned commissioner or the administrative law judge shall be
accompanied by a written explanation of each of the changes made to
the decision.
(b)
(f) Notwithstanding Section 307, an officer, employee,
or agent of the commission that is personally involved in the
prosecution or in the supervision of the prosecution of an
adjudication case before the commission shall not participate in the
decision of the case, or in the decision of any factually related
adjudicatory proceeding, including participation in or advising the
commission as to findings of fact, conclusions of law, or orders. An
officer, employee, or agent of the commission that is personally
involved in the prosecution or in the supervision of the prosecution
of an adjudication case may participate in reaching a settlement of
the case, but shall not participate in the decision of the commission
to accept or reject the settlement, except as a witness or counsel
in an open hearing or a hearing closed pursuant to subdivision
(d). (h). The Legislature finds that
the commission performs both prosecutorial and adjudicatory functions
in an adjudication case and declares its intent that an officer,
employee, or agent of the commission, including its attorneys, may
perform only one of those
functions in any adjudication case or factually related adjudicatory
proceeding.
(c)
(g) (1) Ex parte communications shall be prohibited in
adjudication cases.
(2) Any oral or written communications concerning procedural
matters in adjudication cases between interested persons and
decisionmakers, except the assigned administrative law judge, shall
be prohibited.
(d)
(h) Notwithstanding any other law, the commission may
meet in a closed hearing to consider the decision that is being
appealed. The vote on the appeal shall be in a public meeting and
shall be accompanied with an explanation of the appeal decision.
(e)
(i) Adjudication cases shall be resolved within 12
months of initiation unless the commission makes findings why that
deadline cannot be met and issues an order extending that deadline.
In the event that a rehearing of an adjudication case is granted, the
parties shall have an opportunity for final oral argument.
(f)
(j) (1) The commission may determine that the
respondent lacks, or may lack, the ability to pay potential penalties
or fines or to pay restitution that may be ordered by the
commission.
(2) If the commission determines that a respondent lacks, or may
lack, the ability to pay, the commission may order the respondent to
demonstrate, to the satisfaction of the commission, sufficient
ability to pay potential penalties, fines, or restitution that may be
ordered by the commission. The respondent shall demonstrate the
ability to pay, or make other financial arrangements satisfactory to
the commission, within seven days of the commission commencing an
adjudication case. The commission may delegate to the attorney to the
commission the determination of whether a sufficient showing has
been made by the respondent of an ability to pay.
(3) Within seven days of the commission's determination of the
respondent's ability to pay potential penalties, fines, or
restitution, the respondent shall be entitled to an impartial review
by an administrative law judge of the sufficiency of the showing made
by the respondent of the respondent's ability to pay. The review by
an administrative law judge of the ability of the respondent to pay
shall become part of the record of the adjudication and is subject to
the commission's consideration in its order resolving the
adjudication case. The administrative law judge may enter temporary
orders modifying any financial requirement made of the respondent
pending the review by the administrative law judge.
(4) A respondent that is a public utility regulated under a rate
of return or rate of margin regulatory structure or that has gross
annual revenues of more than one hundred million dollars
($100,000,000) generated within California is presumed to be able to
pay potential penalties or fines or to pay restitution that may be
ordered by the commission, and, therefore, paragraphs (1) to (3),
inclusive, do not apply to that respondent.
SEC. 8. SEC. 7. Section 1701.3 of
the Public Utilities Code is amended to read:
1701.3. (a) If
If the commission pursuant to Section 1701.1 has
determined that a ratesetting case requires a hearing, the
procedures prescribed by this section shall be applicable.
The
(a) The assigned commissioner
shall determine prior to the first hearing whether the commissioner
or the assigned administrative law judge shall be designated as the
principal hearing officer. The principal hearing officer shall be
present for more than one-half of the hearing days. The decision of
the principal hearing officer shall be the proposed decision.
An
(b) An alternate decision may be
issued by the assigned commissioner or the assigned administrative
law judge who is not the principal hearing officer. The
Any alternate decision may be filed with the
commission and served upon all parties to the proceeding any time
prior to issuance of a final decision by the commission, consistent
with the requirements of Section 311.
(c) The commission shall
establish a procedure for any party to request the presence of a
commissioner at a hearing. The assigned commissioner shall be present
at the closing arguments of the case. The
(d) The principal hearing officer
shall present the proposed decision to the full commission in a
public meeting. The alternate decision, if any, shall also be
presented to the full commission at that public meeting. The
alternate decision shall be filed with the commission and shall be
served on all parties simultaneously with the proposed decision.
The
(e) The presentation to the full
commission shall contain a record of the number of days of the
hearing, the number of days that each commissioner was present, and
whether the decision was completed on time.
(b)
(f) The commission shall provide by regulation for
peremptory challenges and challenges for cause of the administrative
law judge. Challenges for cause shall include, but not be limited to,
financial interests and prejudice. All parties shall be entitled to
unlimited peremptory challenges in any case in which the
administrative law judge has within the previous 12 months served in
any capacity in an advocacy position at the commission, been employed
by a regulated public utility, or has represented a party or has
been an interested person in the case.
(c)
(g) (1) Ex parte communications are prohibited in
ratesetting cases.
(A) Oral communications may be permitted without any
reporting obligation at any time by any by a
decisionmaker if all parties are invited and given not less than
three working days' notice.
(B) Written ex parte communications by any interested person may
be permitted without any reporting requirement
provided that copies of the communication are transmitted to all
parties on the same day as the original communication. Written ex
parte communications shall not be part of the record of the
proceeding.
(C) The commission may establish a period during which no oral or
written all-party communications may be permitted and the commission
may meet in closed session during that period, which shall not in any
circumstance exceed 14 days. If the commission holds the decision,
it may permit all-party communications during the first half of the
interval between the hold date and the date that the decision is
calendared for final decision. The commission may meet in closed
session for the second half of that interval.
(2) Oral communications concerning a procedural matter in
ratesetting cases between interested persons and decisionmakers,
except the assigned administrative law judge, are prohibited, except
that an oral communication may be permitted at any time by any
decisionmaker if all parties are invited and given not less than
three working days' notice.
(3) Written communications concerning a procedural matter in
ratesetting cases between interested persons and decisionmakers,
except the assigned administrative law judge, are prohibited, except
that a decisionmaker may permit a written communication by any party
if copies of the communication are transmitted to all parties on the
same day.
(d) Any party has the right to present a final oral argument of
its case before the commission. Those requests shall be scheduled in
a timely manner. A quorum of the commission shall be present for the
final oral arguments.
(h) The commission shall hold an en banc hearing before a quorum
of commissioners, after the proposed decision is issued in all
contested ratesetting cases, at which all parties have an opportunity
to be heard, unless all parties waive this requirement and a
majority of commissioners concur with that waiver. The commission
shall adopt rules for implementation of this requirement, which shall
provide for the broadest participation by parties to the proceeding
that the commission can reasonably accommodate, consistent with the
commissioners' other duties and responsibilities.
(e)
(i) The commission may, in issuing its decision, adopt,
modify, or set aside the proposed decision or any part of the
decision based on evidence in the record. The final decision of the
commission shall be issued not later than 60 days after the issuance
of the proposed decision. Under extraordinary circumstances the
commission may extend this date for a reasonable period. The 60-day
period shall be extended for 30 days if any alternate decision is
proposed pursuant to Section 311.
SEC. 9. SEC. 8. Section 1701.4 of
the Public Utilities Code is amended to read:
1701.4. (a) If
If the commission pursuant to Section 1701.1 has
determined that a quasi-legislative case requires a hearing, the
procedures prescribed by this section shall be applicable.
The
(a) The assigned administrative
law judge shall act as an assistant to the assigned commissioner in
quasi-legislative cases. The assigned commissioner shall be
present for formal hearings. The assigned commissioner
shall prepare the proposed rule or order with the assistance of the
administrative law judge. The assigned commissioner shall present the
proposed rule or order to the full commission in a public meeting.
The report shall include the number of days of hearing and the number
of days that the commissioner was present.
(b) Ex parte communications shall be permitted. Any ex parte
communication shall be reported by an interested person in
accordance with subdivision (d) of Section 1701.1 and the procedures
established by the commission for the service of that notice.
in compliance with Section 1701.6. No reporting
shall be required for written ex parte communications that are
transmitted to all parties on the same day as the original
communication.
(c) Any party has the right to present a final oral argument of
its case before the commission. Those requests shall be scheduled in
a timely manner. A quorum of the commission shall be present for the
final oral arguments.
(c) The commission shall hold an en banc hearing before a quorum
of commissioners, after the proposed decision is issued in all
contested quasi-legislative cases, unless all parties waive this
requirement and a majority of commissioners concur with that waiver.
The commission shall adopt rules for implementation of this
requirement, which shall provide for the broadest participation by
parties to the proceeding that the commission can reasonably
accommodate, consistent with the commissioners' other duties and
responsibilities.
(d) The commission may, in issuing its rule or order, adopt,
modify, or set aside the proposed decision or any part of the rule or
order. The final rule or order of the commission shall be issued not
later than 60 days after the issuance of the proposed rule or order.
Under extraordinary circumstances the commission may extend this
date for a reasonable period. The 60-day period shall be extended for
30 days if any alternate rule or order is proposed pursuant to
Section 311.
SEC. 9. Section 1701.5 of the Public
Utilities Code is amended to read:
1701.5. (a) Except as specified in subdivision (b), in a
ratesetting or quasi-legislative case, the commission shall resolve
the issues raised in the scoping memo within 18 months of the date
the scoping memo is issued, proceeding is
initiated, unless the commission makes a written determination
that the deadline cannot be met, including findings as to the reason,
and issues an order extending the deadline. No single order may
extend the deadline for more than 60 days.
(b) Notwithstanding subdivision (a), the commission may specify in
a scoping memo a resolution date later than 18 months from the date
the scoping memo is issued, proceeding is
initiated, if that scoping memo includes specific reasons for
the necessity of a later date and the commissioner assigned to the
case approves the date.
SEC. 10. Section 1701.6 is added to the
Public Utilities Code , to read:
1701.6. (a) The commission shall establish and maintain a
communications log summarizing all oral or written ex parte
communications, as defined in Section 1701.1.
(b) The communications log shall include a summary of all oral and
written communications that meet the definition of an ex parte
communication that occur between an interested person and any of the
following officials:
(1) A commissioner.
(2) The attorney for the commission.
(3) The executive director of the commission.
(4) The personal staff of a commissioner, if the staff is acting
in a policy or legal advisory capacity.
(5) The chief administrative law judge of the commission.
(6) The administrative law judge assigned to the proceeding.
(c) Each record of a communication in the communication log shall
include the date of each communication, the persons involved in the
communication, the topics discussed, and, to the extent known, any
proceedings that were the subject of each communication. Ex parte
communications in the summary log shall be reported no later than
three working days after the communication.
(d) The communication log shall be made available to the public on
the commission's Internet Web site not later than July 1, 2016.
SEC. 10. SEC. 11. Section
1701.6 1701.7 is added to the Public Utilities
Code, to read:
1701.6. 1701.7. (a) In addition to
any penalty, fine, or other punishment applicable pursuant to Article
11 (commencing with Section 2100), the commission may assess civil
sanctions upon any entity or person, other than a decisionmaker or
employee of the commission, who violates, fails to comply with, or
procures, aids, or abets any violation of, the ex parte communication
requirements of this article or those adopted by the commission
pursuant to this article. The civil sanctions may include civil
penalties, adverse consequences in commission proceedings, or other
appropriate commission orders directed at the entity, person, or both
the entity and person, committing the violation.
(b) (1) Except as provided in paragraph (2), a civil penalty
assessed shall not exceed fifty thousand dollars ($50,000) per
violation. Each day of a continuing violation is a separate
violation. If the violation consists of engaging in a communication
that is prohibited by the ex parte communication requirements, each
day that the violation is not disclosed to the commission and to
parties of record in the formal proceeding in which the communication
occurred shall constitute a separate violation. If the
violation consists of failing to file a required notice of a
permissible ex parte communication or filing a notice of a
permissible ex parte communication that is inaccurate or incomplete,
each day that the violation is not remedied shall constitute a
separate violation.
(2) If the entity or person may obtain, by violating the ex parte
communication requirements, financial benefits that exceed the
maximum amount of civil penalty allowable pursuant to paragraph (1),
the commission may impose a civil penalty up to the amount of those
financial benefits.
(c) Civil penalties assessed pursuant to subdivision (b) upon
entities whose rates are determined by the commission shall be in the
form of credits to the customers of that entity. Civil penalties
collected from other entities shall be deposited in the General Fund.
(d) In determining the appropriate civil sanctions, the commission
shall consider the following factors:
(1) The severity of the violation.
(2) The conduct of the entity or person, including the level of
experience of the entity or person in participating in commission
proceedings. proceedings and whether the
entity or person knowingly violated the ex parte communication
requirements.
(3) The financial resources of the entity or person.
(4) The totality of the circumstances in furtherance of the public
interest.
SEC. 11. SEC. 12. Section
1701.7 1701.8 is added to the Public Utilities
Code, to read:
1701.7. 1701.8. (a) The Attorney
General may bring an enforcement action in the Superior Court for the
City and County of San Francisco against a decisionmaker or employee
of the commission who violates, fails to comply with, or procures,
aids, or abets any violation of, the ex parte communication
requirements in this article or those adopted by the commission
pursuant to this article. The court shall expedite its review of the
action to provide effective and timely relief.
(b) (1)
Notwithstanding Notwithstanding
Section 1759, in an enforcement action brought pursuant to this
section, the court may grant appropriate relief, including
disqualification of the decisionmaker from one or more proceedings
and civil penalties not to exceed fifty thousand dollars
($50,000) for each violation. as provided in Section
2111.
(2) If the decisionmaker or employee may obtain, by violating the
ex parte communication requirements, financial benefits that exceed
the civil penalties provided in paragraph (1), the court may impose a
civil penalty up to the amount of those financial benefits.
(c) In determining the appropriate relief, the court may consider
the following factors:
(1) The severity of the violation.
(2) The conduct of the decisionmaker or employee, including
whether the decisionmaker or employee knowingly violated the ex parte
communication requirements.
(3) The financial resources of the decisionmaker or employee.
(4) The totality of the circumstances in furtherance of the public
interest.
(d) The Attorney General may compromise the enforcement action
subject to approval by the court.
(e) Civil penalties collected pursuant to this section shall be
deposited into the Litigation Deposits Fund established pursuant to
Article 9 (commencing with Section 16425) of Chapter 2 of Part 2 of
Division 4 of Title 2 of the Government Code.
SEC. 12. SEC. 13. No reimbursement
is required by this act pursuant to Section 6 of Article XIII B of
the California Constitution because the only costs that may be
incurred by a local agency or school district will be incurred
because this act creates a new crime or infraction, eliminates a
crime or infraction, or changes the penalty for a crime or
infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIII B of the California Constitution.